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Lessons for the left from Trump’s hostility to the First Amendment

November 30, 2016

Dorothee Benz,

Donald Trump’s ignorance of the Constitution was on display yesterday in his tweet calling for “consequences” for flag burning. “Perhaps loss of citizenship or year in jail!” the president-elect opined in his latest demonstration of policy-proposal-by-tweet.

But the ignorance, like the aversion to serious study of any issues (on display in the widely reported decision to bypass daily intelligence briefings, for instance) is beside the point, if worrisome, to those of us concerned about defending civil rights and civil liberties. The point, rather, is that Trump doesn’t give a rat’s ass about the Constitution and is always willing to pander to the right to bolster his ego and – much more importantly – his power. That Antonin Scalia, whom Trump has praised and held up as the model for his first appointment to the Supreme Court, disagreed with Trump on this issue also doesn’t matter.

Scalia, to no one’s surprise, consistently ruled against the Center for Constitutional Rights, but on the issue of flag burning, he ruled in our favor. The 1989 Supreme Court ruling in Texas v. Johnson struck down Texas’s flag desecration law as well as similar laws in 47 other states. In response, Congress passed a federal flag desecration law, and the Court then promptly held that law unconstitutional as well in United States v. Eichman.

Settled constitutional law, though, is no obstacle to Trump’s ambitions. And that is the crucial thing we need to understand about this latest episode.

Trump’s aversion to other people’s free speech – an irony not lost on commentators yesterday – is matched by his disdain for the other clauses of the First Amendment.

Freedom of the press: It has been clear for many months that Trump has no use for the media’s main functions in a democratic society: disseminating information; critically interrogating the proposals, pronouncements, decisions, and actions of the powerful; representing the public interest. He has refused to hold press conferences, banned media outlets from his press pool, and unleashed furious tirades against them for critical coverage.

Freedom of assembly: He has railed against those protesting him, at various times calling for their arrest and encouraging his supporters to beat them up. He has sought to discredit protestors as “professional protesters.”

In short, there is no part of the First Amendment that Donald Trump likes or shows any indication he will respect as president.

Our job, in response, is not to offer con law lectures to the president-elect but to recognize that he does not care about the constitutionality of his proposals and to take his unconstitutional proposals seriously. As CCR has said elsewhere, Trump’s extremist agenda is “more than just locker room talk” and we need to actively resist that agenda.

In the case of the First Amendment, resisting Trumpism means vigorously exercising and defending our First Amendment rights rather than assuming the settled constitutionality of those rights will somehow protect us by itself. Now, more than ever, we need a critical, combative press, one that understands, as Orwell put it, that “Journalism is printing what someone else does not want printed: everything else is public relations.” Now, more than ever, we need to flood the streets in protest, to stand up and sit in and lay our bodies down in defense of the civil rights and civil liberties of all those targeted and threatened by the Trump agenda.

About flag burning and the First Amendment, Scalia said, “it is addressed, in particular to speech critical of the government. I mean, that was the main kind of speech that tyrants would seek to suppress.” Indeed.